Contents

Subject of Litigation

The homosexual movement became powerful in certain areas of Colorado, particularly among the elite in Denver and Aspen. These cities passed laws granting special privileges to homosexuals not enjoyed by heterosexuals, such as banning discrimination against homosexuals but not against heterosexuals.[Citation Needed]

Colorado voters statewide opposed this favoritism, and enacted a referendum known as "Amendment 2" to the Colorado Constitution. This nullified any city or state law granting special protections to homosexuals.

The Amendment was based on the traditional legal doctrine that employers can fire at will, and that Colorado would devote scarce resources to eradicating race and gender discrimination.

Liberals quickly sued to persuade a judge to overturn what the people had just approved. The liberal argument was that the amendment violated the Equal Protection Clause. Though the U.S. Supreme Court declines to hear about 99% of the cases presented to it, it granted certiorari to hear this dispute.

Holding of the Court

A narrow majority of the U.S. Supreme Court invalidated what the majority of Colorado voters approved. Justice Sandra Day O'Connor wrote that the only reason for Amendment 2 was "animus laid bare," or a mere desire to stigmatize without any real benefit for its citizens, and a real detriment to the stigmatized group. O'Connor wrote that this very idea was repugnant to the U.S. Constitution.

Fallout, and Interpreting Romer

The Court says that Amendment 2 fails rational basis review. But does it really? Rational basis review allows almost any "state interest," legitimate or not, pretextual or not, to count as sufficient for legislative classification. Thus, even an almost farcical motive for classification will generally pass muster (Carolene Products says as much). Under this light test, it is argued, Amendment 2 would pass, since even if the reasons were pretextual, rational basis would still not invalidate them.

As a result of this problem, commentators have suggested that Romer represents something more revolutionary than it appears, at first. Perhaps Romer stands for the principle that, when classifying on the basis of so-called sexual orientation, rational basis is not enough. Rather, in addition to a rational basis, the reviewing Court must also ensure that the offered rationale is not pretextual to "animus laid bare." This is a much more robust inquiry, dubbed "rational basis with teeth," that sounds like a midpoint between rational basis review and intermediate scrutiny. If it is, it may be a suggestion that the Court would be willing, in the future, to require classification on the basis of sexual preference or orientation to pass strict scrutiny. The Court has before offered "midway" cases, after all, in the run-up to making a sweeping doctrinal change, as the case Reed v. Reed presaged the application of strict scrutiny to gender with a similarly vague form of "rational basis" review.

Many have suggested that Romer makes little sense in a pre-Lawrence world. After all, so long as sodomy or other homosexual sex acts were illegal, could not the state find a "rational basis" to discriminate against homosexuals on the basis of their imputed engagement in felonious acts (sodomy)? Indeed, this reason should pass the light review guaranteed by rational basis review. As such, after Lawrence, when anti-sodomy statues were struck down, Romer makes much more sense, since the criminal stigma of homosexuality was wholly removed by Lawrence, at least at law.

The possibility of Romer's revolutionary nature has been confined somewhat by lower court holdings. In Florida, the court in Lofton, upheld a ban on gay adoption without engaging in the "pretext" analysis that a broader reading of Romer would require, and instead ending the inquiry with rational basis review. However, this case was very narrowly decided, and only denied rehearing by a vote of 6 to 6. The real meaning of Romer is thus unsettled, and unlikely to be settled in the near future, as the Court often adopts a "wait and see" approach after major social changes, before instigating another.

Dissent

Scalia wrote a dissent to the case, observing how the case really concerned the "homosexual agenda." Why is the U.S. Supreme Court picking sides in a political dispute? He reminded the Court of its narrow role in resolving social conflicts, and took a textual view of the Fourteenth Amendment as protecting only against discrimination on the basis of race and gender. Since sexual "orientation" was neither, he said, the legal inquiry was over, and the U.S. Constitution was silent.